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1.10.2017

The Top 10 Copyright Rulings Of 2016

At the end of each year, Law 360 tallies up the top 10 copyright rulings of the year. It's always great taking a glimpse back at important decisions that affect copyright law, litigants and creators and will have an impact in the future.

Summary

When it came to copyright rulings, 2016 saw a U.S. Supreme Court decision, big-time jury verdicts involving Google and Led Zeppelin, several major decisions on music law, and more. To get you up to speed for the start of the new year, here are the top 10 copyright decisions from the year that was.

When it came to copyright rulings, 2016 saw a U.S. Supreme Court decision, big-time jury verdicts involving Google and Led Zeppelin, several major decisions on music law, and more. To get you up to speed for the start of the new year, here are the top 10 copyright decisions from the year that was.

10. Estate of Robert Graham v. Sotheby’s Inc.

A federal judge’s April decision — that California’s Resale Royalty Act is preempted by federal copyright law — tossed out long-running class action litigation against Christie's Inc., Sotheby's Inc. and eBay Inc. over the quirky state statute.

Artists sued the auction houses in 2011, claiming they were potentially owed millions in royalties under the CRRA, but U.S. District Judge Michael W. Fitzgerald ruled in April that the state law’s requirements stood as an “obstacle” to the federal Copyright Act’s first sale doctrine, which expressly allows for a particular copy of a copyrighted work to be resold without such restrictions.

The ruling — the second time the case has been tossed out — will likely be appealed to the Ninth Circuit.

9. Disney Enterprises Inc. et al v. VidAngel Inc.

The California federal judge’s December injunction shutting down VidAngel was a big win for Hollywood in its latest fight against an unauthorized web service that uses copyrighted material.

Like Aereo and TVEyes before it, entertainment companies sued VidAngel in June for offering a service that allows users to rent films, edit them to remove nudity, violence, and other objectionable material, and then stream them into their home.

VidAngel argued, among other things, that it was protected by the Family Home Movie Act, which aimed to make it easier for consumers to edit videos to remove unwanted material, but U.S. District Judge Andre Birotte Jr. said the legislative history of the statute “directly contradicted” the company’s argument.

VidAngel has vowed to appeal the injunction to the Ninth Circuit and to the Supreme Court if necessary.

8. ABS Entertainment Inc. v. CBS Corp.

A federal judge's June ruling gave radio stations a powerful new argument in the years-long battle over so-called pre-1972 recordings: That they hadn’t played the old records at all.

Like Sirius XM, CBS was sued for refusing to pay the owners of pre-1972 songs — a legal gray area since songs recorded prior to that year are protected by a mess of state laws rather than federal copyright law.

After Sirius and Pandora were both hit with rulings forcing them to pay, CBS went with a novel argument: That the versions of the old songs it played over the radio, "remastered" long after 1972, weren't actually pre-1972 recordings in the first place.

U.S. District Judge Percy Anderson endorsed that argument in June, potentially creating a powerful new weapon for radio stations to defend themselves against such claims.

CBS is appealing the ruling to the Ninth Circuit.

7. Capitol Records Inc. v. MP3tunes LLC

The Second Circuit’s October ruling was the court’s first time weighing in on the Digital Millennium Copyright Act’s requirement that sites must ban “repeat infringers” or lose the protection of the law’s liability safe harbor.

A trial judge had ruled that the provision only required internet service providers to terminate “blatant infringers” who willfully swap protected material, but the Second Circuit said repeat infringers aren’t just those who knowingly infringe.

The ruling was a win for content companies, which want to see websites and service providers take a more aggressive approach to policing online piracy; a lower threshold for what constitutes a “repeat infringer” could require that tougher approach.

MP3Tunes is currently asking the en banc Second Circuit to reconsider.

6. VMG Salsoul LLC v. Madonna Ciccone

The Ninth Circuit’s June decision to toss out a lawsuit over Madonna’s use of an obscure 0.23-second sample in her 1990 hit "Vogue" dramatically and intentionally altered the legal landscape on music sampling.

Courts had, since the Sixth Circuit's controversial 2005 decision known as Bridgeport Music, considered just about any amount of sampling of a sound recording to be copyright infringement. But the Ninth Circuit, acknowledging that it was taking "the unusual step of creating a circuit split," directly rejected that earlier ruling, saying small bits of songs could be considered so small, or “de minimis,” that they don’t infringe.

VMG did not appeal the ruling the U.S. Supreme Court.

5. Skidmore v. Led Zeppelin

A California federal jury’s June rejection of accusations that Led Zeppelin stole the famed opening riff of their 1971 megahit “Stairway to Heaven” ended one of the highest-profile rock-and-roll copyright trials of recent memory.

The estate of the late Randy Wolfe claimed Jimmy Page and Robert Plant ripped off the riff from a 1967 instrumental ballad “Taurus” by the Wolfe’s band Spirit, but after a six-day trial that saw both famed rockers testify jurors determined that the two songs were not "extrinsically similar.”

The plaintiffs have appealed to the Ninth Circuit.

4. Capitol Records LLC et al. v. Vimeo LLC

The Second Circuit’s June ruling for online video platform Vimeo cleared up years of uncertainty over a tricky question: Whether the Digital Millennium Copyright Act’s safe harbors protect online hosts from liability even for those pre-1972 recordings that aren’t covered by federal copyright law.

The DMCA's safe harbors shield sites like YouTube or Vimeo from copyright liability for infringing material posted by users, but had long been unclear whether the federal immunity applied to the old songs since they are exclusively the domain of state law.

The Second Circuit’s decision — the first appellate ruling on the subject — said sites are shielded for those songs too, declaring that a ruling otherwise would “defeat the very purpose Congress sought to achieve in passing the statute.”

Capitol has appealed the ruling to the U.S. Supreme Court.

3. Flo & Eddie v. Sirius XM

In yet another case over pre-1972 recordings, the New York Court of Appeals’ December ruling dealt a huge blow to record labels and artists in their yearslong fight to wring millions in new royalties from radio stations and web streamers for the old songs.

The decision came after more than three years of litigation over whether companies like SiriusXM must pay for the pre-'72 tunes — a question that’s trickier than it might sound, given the fact that the songs aren’t covered by federal copyright law.

Several trial-level courts had ruled that stations must pay up, but Court of Appeals went hard the other way: Saying the state had “never recognized” the kind of “performance right” that would require payment.

Though similar cases are still pending in appeals courts in California and Florida, the New York ruling, most likely unappealable further, was a massive blow to the idea that performance royalties for pre-1972s will be an ongoing source of revenue for artists and labels.

2. Oracle America Inc. v. Google Inc.

A California federal jury’s May verdict — and bench rulings in June and October refusing to disturb it — cleared Google of $8.8 billion in potential copyright liability and set the stage for an epic 2017 Federal Circuit battle over the fair use doctrine.

Google’s win — over claims that the company infringed copyrights by incorporating Oracle’s Java software into the Android smartphone platform — came after six years of litigation and a three-week must-see jury trial in San Francisco.

1. Kirtsaeng v. John Wiley & Sons Inc.

The U.S. Supreme Court's June ruling on fee-shifting wasn’t the sexiest issue for the justices to tackle, but it was one that, owing to the wording of the Copyright Act, comes up in nearly every adjudicated copyright case.

The ruling — on the statute’s provision telling courts they “may also award a reasonable attorney’s fee to the prevailing party” — wasn’t so much a sweeping proclamation or bright-line rule as much as it was nuanced guidance on what had become a messy situation.

Whereas some circuits had made attorneys' fee awards "the rule rather than the exception" and others had made fees very difficult to get by refusing to award unless the case was “objectively unreasonable,” the justices instead urged courts to simply use their discretion and weigh matters holistically.

The “objective reasonableness” of a case is important, the justices wrote, but courts “must view all the circumstances of a case on their own terms, in light of the Copyright Act's essential goals.”

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